TAA 22C1-006 Determination of Income

QUESTION: Taxpayer requests a written agreement between themselves and the Florida Department of Revenue, concerning the method by which income generated by or arising out of a “qualified capital investment project” shall be determined for purposes of the Florida Capital Investment Tax Credit under s. 220.191, F.S. 

ANSWER: The Department is inclined to concur with Taxpayer’s suggested calculation for the income generated by or arising out of the qualifying project. However, Taxpayer was reminded that should the facts provided in its request be determined to be substantially different, this TAA would not apply and the methodology may be deemed inappropriate. 

September 28, 2022

Technical Assistance Advisement – TAA #: 22C1-006

Request for Written Agreement for Determination of Income

Sections 220.11, 220.13, 220.15, 220.191, Florida Statutes (“F.S.”)

Rule 12C-1.0191, Florida Administrative Code (“F.A.C.”)

XXX (“Taxpayer”)

FEIN: XXX

BP #: XXX

Project ID: XXX

Florida Department of Economic Opportunity (“DEO”)

Enterprise Florida, Inc. (“EFI”)

Dear XXX, 

This is in response to your request dated XXX, for a Technical Assistance Advisement (“TAA”) pursuant to section 213.22, F.S., and Rule Chapter 12-11, F.A.C., regarding your request for an agreement concerning how the method by which income generated by or arising out of Taxpayer’s qualified capital investment project shall be determined for purposes of applying the Capital Investment Tax Credit (“CITC”).

Section 220.191(5), F.S., addresses applications for CITC. That statute provides: 

Applications shall be reviewed and certified pursuant to s. 288.061. The Department of Economic Opportunity, upon recommendation by Enterprise Florida, Inc., shall first certify a business as eligible to receive tax credits pursuant to this section prior to the commencement of operations of a qualifying project, and such certification shall be transmitted to the Department of Revenue. Upon receipt of the certification, the Department of Revenue shall enter into a written agreement with the qualifying business specifying, at a minimum, the method by which income generated by or arising out of the qualifying project will be determined.

Pursuant to Rule 12C-1.0191, F.A.C., the Department of Revenue has adopted TAAs as the method for entering into such written agreements. 

On XXX, DEO certified Taxpayer as eligible to receive tax credits under s. 220.191, F.S. The Department of Revenue, having received said certification, has examined your letter and has established that you have complied with the statutory and regulatory requirements for issuance of a TAA. Therefore, the Department of Revenue is hereby granting your request for a TAA. The Department of Revenue, in issuing this TAA, has relied on the representations of Taxpayer and the certification of the Department of Economic Opportunity. This TAA specifies the method by which income generated by or arising out of the qualifying project will be determined based on the facts as represented to the Department of Revenue. This response to your request constitutes a Technical Assistance Advisement under Chapter 12-11, F.A.C., and is issued to you under authority of s. 213.22, F.S. 

ISSUE PRESENTED

In its letter dated XXX, Taxpayer requests a written agreement to determine how the qualifying project’s income will be computed, based upon s. 220.191, F.S., and Rule 12C-1.0191, F.A.C. 

FACTS SUPPLIED BY TAXPAYER 

Taxpayer is the parent of a group of wholly owned subsidiaries; XXX (“Sub. 1”), XXX (“Sub. 2”), and XXX (“Sub. 3”) (collectively referred to as “Group”). The ultimate parent of these XXX subsidiaries is XXX which is based in XXX. Taxpayer files a consolidated federal return which includes all of the subsidiaries. Currently, each company files a separate Florida corporate income tax return.

Taxpayer XXX to customers in XXX. 

Sub. 1 XXX. Their XXX is located in XXX, with additional XXX, and XXX. It is Taxpayer’s intent to merge Sub. 1 by the end of XXX.

Sub. 2 XXX. Sub. 2 is in the process of XXX. The XXX will be XXX. The qualifying project will replace the XXX and XXX. It is Taxpayer’s intent to XXX Sub. 2 XXX which is anticipated to occur by the end of XXX. Sub. 3 is located in XXX. In previous years 

Sub. 3 had nexus in Florida. However, currently Sub. 3 does not have nexus in Florida.¹ 

Taxpayer’s qualifying project will consist of XXX located in XXX, Florida. The XXX. The projected capital investment by Taxpayer is estimated to exceed $XXX. Taxpayer expects to commence operations in XXX.

Taxpayer proposes using a 5-year consolidated average tax liability as the basis to determine the incremental difference of tax liability associated with the project. Taxpayer calculated the consolidated average taxable income, apportionment factors, and tax paid over a 5-year period which included Taxpayer and the Group. Those averages are: 

• Average Taxable Income: $XXX 
• Average Apportionment Percentage: XXX% 
• Average Tax Paid (using 5.5% projected rate): $XXX

The incremental tax paid in future years based on the increased income earned in Florida, as well as the tax associated with the increased apportionment percentage should then be compared to that base period tax of $XXX. The increase should be used to establish the increase in business income associated with the project to determine the CITC available. 

LEGAL AUTHORITY 

Section 220.11, F.S., states in part:

(1) A tax measured by net income is hereby imposed on every taxpayer for each taxable year commencing on or after January 1, 1972, and for each taxable year which begins before and ends after January 1, 1972, for the privilege of conducting business, earning or receiving income in this state, or being a resident or citizen of this state. Such tax shall be in addition to all other occupation, excise, privilege, and property taxes imposed by this state or by any political subdivision thereof, including any municipality or other district, jurisdiction, or authority of this state…. 

Section 220.13, F.S., states in part:

(1) The term “adjusted federal income” means an amount equal to the taxpayer’s taxable income as defined in subsection (2), or such taxable income of more than one taxpayer as provided in s. 220.131, for the taxable year, adjusted as follows: … 

Section 220.15, F.S., states in part: 

(1) Except as provided in ss. 220.151, 220.152, and 220.153, adjusted federal income as defined in s. 220.13 shall be apportioned to this state by taxpayers doing business within and without this state by multiplying it by an apportionment fraction composed of a sales factor representing 50 percent of the fraction, a property factor representing 25 percent of the fraction, and a payroll factor representing 25 percent of the fraction. … 

Section 220.191, F.S., states in part:

(1) DEFINITIONS.—For purposes of this section: 

(a) “Commencement of operations” means the beginning of active operations by a qualifying business of the principal function for which a qualifying project was constructed. 

(b) “Cumulative capital investment” means the total capital investment in land, buildings, and equipment made in connection with a qualifying project during the period from the beginning of construction of the project to the commencement of operations. 

(c) “Eligible capital costs” means all expenses incurred by a qualifying business in connection with the acquisition, construction, installation, and equipping of a qualifying project during the period from the beginning of construction of the project to the commencement of operations, including, but not limited to: … 

(d) “Income generated by or arising out of the qualifying project” means the qualifying project’s annual taxable income as determined by generally accepted accounting principles and under s. 220.13. 

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(f) “Qualifying business” means a business which establishes a qualifying project in this state and which is certified by the Department of Economic Opportunity to receive tax credits pursuant to this section.

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(2)(a) An annual credit against the tax imposed by this chapter shall be granted to any qualifying business in an amount equal to 5 percent of the eligible capital costs generated by a qualifying project, for a period not to exceed 20 years beginning with the commencement of operations of the project. …The annual tax credit granted under this section shall not exceed the following percentages of the annual corporate income tax liability or the premium tax liability generated by or arising out of a qualifying project: 

1. One hundred percent for a qualifying project which results in a cumulative capital investment of at least $100 million. 

2. Seventy-five percent for a qualifying project which results in a cumulative capital investment of at least $50 million but less than $100 million. 

3. Fifty percent for a qualifying project which results in a cumulative capital investment of at least $25 million but less than $50 million. 

*** 

(d) If the credit granted under subparagraph (a)1. is not fully used in any one year because of insufficient tax liability on the part of the qualifying business, the unused amounts may be used in any one year or years beginning with the 21st year after the commencement of operations of the project and ending the 30th year after the commencement of operations of the project.

*** 

(4) Prior to receiving tax credits pursuant to this section, a qualifying business must achieve and maintain the minimum employment goals beginning with the commencement of operations at a qualifying project and continuing each year thereafter during which tax credits are available pursuant to this section. 

*** 

(8) The Department of Revenue may specify by rule the methods by which a project’s pro forma annual taxable income is determined.

DISCUSSION 

On XXX, DEO issued a letter approving Taxpayer’s project for participation in Florida’s CITC program, and indicated in its letter that the “Qualifying Project” will be located in XXX. The certification approval entitles the project to eligibility for an annual tax credit against the corporate income tax imposed if certain criteria are met, in an amount equal to the lesser of the following for up to twenty years, beginning with the commencement of operations: 

1. XXX percent of the cumulative capital investment, which is estimated to exceed $XXX, but must be at least $XXX; 

2. XXX, of the annual corporate income tax liability generated by or arising out of the qualifying project, depending on the level of cumulative capital investment; or 

3. The tax due on the separate Florida corporate income tax return of Taxpayer prior to the application of this credit that includes the income generated by or arising out of the qualifying project.

DEO has required that the qualifying project meet certain criteria by the commencement of operations. The “commencement of operations” (as defined in s. 220.191, F.S.) will not be deemed to occur unless Taxpayer has provided DEO with evidence that it has met the following criteria: 

1. Capital investment of at least $XXX has been made at the project’s location in XXX, Florida; and 

2. Creation of at least XXX net new-to-Florida full-time equivalent jobs paying at least the project wage at the project’s location in XXX, Florida.

No annual CITC may be claimed without a letter from DEO stating that the appropriate annual requirements have been satisfied or maintained.

Taxpayer’s proposed method compares a historic average tax liability of the consolidated group to the current tax year’s tax liability of the consolidated group, including the project. That incremental difference is the tax liability related to the qualifying project. The project tax liability will then be multiplied by the percentage associated with the level of investment made by Taxpayer to determine the associated credit. The Department concurs with Taxpayer’s methodology. However, if Sub. 3 is a separate entity at the commencement of operations, Taxpayer should remove Sub. 3 from the computation of the 5-year consolidated average.

Taxpayer must apply generally accepted accounting principles and the provisions of s. 220.13, F.S., in computing the income of the qualifying project. Taxpayer will be required to provide, with its Florida corporate income tax return, a schedule that shows the calculation of the incremental change, the tax liability and the allowable CITC, related to the project. 

Pursuant to s. 220.191(2)(d), F.S., when the capital investment is at least $XXX, credit amounts not fully used in any one year because of insufficient tax liability on the part of the qualifying business may be used in any one year or years beginning with the 21st year after the commencement of operations of the project and ending with the 30th year after the commencement of operations of the qualifying project.

The amount of carryover from any one taxable year is five (5) percent of the cumulative capital investment that is at least $XXX less the amount of capital investment tax credit that could be used on the tax return for the taxable year. The amount of carryover from a taxable year may not exceed five (5) percent of the cumulative capital investment that is at least $XXX. 

CONCLUSION 

Given the specific circumstances involved in this case, and based on the representation of the Taxpayer, the Department concurs with Taxpayer’s suggested calculation for the income generated by or arising out of the qualifying project based upon s. 220.191, F.S., and Rule 12C-1.0191, F.A.C. However, Taxpayer is reminded that should the facts provided in its request of XXX, be determined to be incorrect or changed, the computation for the income generated by or arising out of the project could be substantially different from what has been agreed upon in this TAA.

This response constitutes a TAA under s. 213.22, F.S., which is binding on the Department only under the facts and circumstances described in the request for this advice, as specified in s. 213.22, F.S. Our response is predicated on those facts and the specific situation summarized above. You are advised that subsequent statutory or administrative rule changes, or judicial interpretations of the statutes or rules, upon which this advice is based, may subject similar future transactions to a different treatment than expressed in this response. 

You are further advised that this response, your request and related backup documents are public records under Chapter 119, F.S., and are subject to disclosure to the public under the conditions of s. 213.22, F.S. Confidential information must be deleted before public disclosure. In an effort to protect confidentiality, we request you provide the undersigned with an edited copy of your request for TAA, the backup material and this response, deleting names, addresses and any other details which might lead to identification of the Taxpayer. Your response should be received by the Department within ten (10) days of the date of this letter.

Susan R Coxwell 

Revenue Program Administrator 

Technical Assistance and Dispute Resolution

^{(1) Taxpayer stated during the XXX, conference and in an email dated XXX, its long-range plan is to XXX Sub. 3, however, it has not had any significant discussions or discussed a timeline for this to happen.}